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812 HARVARD LAW REVIEW
NOVA METHODUS DISCENDAE DOCENDAEQUE
T7VERY century or two, during the past millennium, a new
-"— ' method in the teaching of Law has appeared, to supplant or
to modify the hitherto accepted system. The new method may not
have been, in an absolute sense, an advance. Progress is always
relative, — relative to the conditions and needs of the time. New
conditions require changed methods. And so, in the ripeness of
time, some new method has arisen, to supply an apter tool for newly
On the Continent
About the time when Abelard was revolutionizing the methods
of Theology at Paris, Irnerius was setting a new ensample foi
Law at Bologna, somewhere at the end of the i ioo's. 1
After two centuries, when the possibilities of his method had
been exhausted, the next universally accepted method was that of
Bartolus, whose fame gave currency, in the 1300's, to the maxim
"Nemo bonus jurista nisi Bartolista." 2
After another two centuries the Humanist doctrine, led by Al-
ciat, pointed the way again to a new method; the older one had
outlived its usefulness. This time the congenial soil was France;
and, under Cujas and others, the "mos Gallicus" came to supplant
the "mos Italicus." To fulfill its destiny, another two centuries
Meantime legal science was springing up in Germany; and the
reception of Roman Law there, achieved in the 1500's, offered a
fresh field for the struggle between the old and the new methods.
1 There is an impressive modern fresco, idealizing this famous teacher and sym-
bolizing his work, on the ceiling of the Palazzo del Podesta at Bologna. No portrait
or sculpture of his features is extant.
2 Tribute has been paid recently to some of his achievements by my distinguished
classmate Beale's volume, Bartolus on the Conflict op Laws, transl. 1014; Treatise
on the Conflict of Laws, 1016, § 26; and the six hundredth anniversary of his birth
was celebrated in 19 14 by the universities of Italy.
Nova Methodus Discendae Docendaeque Jurisprudentiae 813
But other influences in turn were rising, — the contrasted but
complementary influences of Natural Law and of Nationalism;
and in the 1600's and the 1700's they became dominant. Broader
and at the same time more practical features of law were now con-
ceived as composing legal science in general. New methods were
In 1667, Leibnitz published his essay, "Nova Methodus dis-
cendae docendaeque Jurisprudentiae." 3 He was but twenty-one
years old; the vast science of law was thus (in Hallam's phrase)
"invaded by a boy." i He divided it into four parts or modes, —
didactic, historic, exegetic, and polemic; and for each part he de-
scribed the kinds of materials that should be used for study and
the way of using them. Though his influence on educational method
apparently did not extend beyond Germany, nevertheless he an-
ticipated the great movements of the next two centuries, — national
codification, for example, in the 1 700's, and the historical school in
the 1800's. His proposed "Novum Corpus Juris," or Justinian
Rearranged, was first realized a century later in France, by
Pothier. The polemic moots which he recommended are perhaps
the precursors of von Ihering's practical exercises, introduced only
in the last generation. His projected "Theatrum Legale" was an
anticipation of the processes of Comparative Law which have
come to pass only in the days of Maine, Kohler, and Dareste; 5
and, curiously enough, the Socratic method, as applied in the Har-
vard Law School under Ames and Keener, is foreshadowed in his
In philosophic stimulus Leibnitz owed much to Bacon's "Novum
Organum." Insular England had meanwhile been developing its
own system of legal education, — the Inns of Court, with their
3 4 Opera Omnia, ed. Dutens (Geneva, 1768), 159. I desire to acknowledge the
courtesy of the Librarian of Harvard University in lending me this volume.
4 Moreover, the added marvel is (as Wolf tells us) that he composed it "in itinere.
omni librorum apparatu destitutus."
6 "Ex his aliisque omnibus [gentium moribus] undecunque collectis, Deo dante,
conficiemus aliquando theatrum legale, et in omnibus materiis omnium gentium, loco-
rum, temporum placita wapaWr/Xois disponemus " (§ 29).
• "Judicium enim, etsi ante annos non veniat, potest tamen et in pueritia interro-
gando excitari; hoc enim voluit Platonis reminiscentia, exhibitumque specimen in
814 HARVARD LAW REVIEW
Moots. Here, as in everything, the British change was slower, and
less radical when it came.
At a very early period the Inns of Court were, in effect, or-
ganizations clustering around the professors of the common law
at London, maintaining its teaching and practice. 7 But, by the
end of the 1500's they had lost this character, and up to the
first half of the 1800's systematic legal education in England was
stagnant. What was given at the universities does not seem to
have had any value placed upon it. Lord Brougham once said, 8
"I won't say it's a humbug; but it's something very like it. When
I was attending lectures on the civil law in Edinburgh, they were
all in Latin. A set of Latin questions were proposed after the lec-
ture to the students. Very difficult, indeed, some of them might
be to answer, if a proper answer were required; but all we had to
do was, if the question commenced with 'Nonne,' we said 'Etiam';
and if with 'An,' we replied, 'Non.'" The office of a practising
lawyer was the only place in which the law could be learned, if at
all. The eminent authority just mentioned thus sketched the
process of legal apprenticeship in his day: "It is a most melancholy
state of things. There is nothing like education for law students
now. When I was in the chambers of Mr. (afterwards Chief- Jus-
tice) Tindal, we seldom or never saw our master; we were told,
' Copy whatever you can lay hold of,' and with that injunction we
were left to ourselves." 9 Professor Dicey added his testimony
concerning the state of affairs even in the '70's: "He is put to make
bricks without straw, or rather without having even been taught
how bricks are to be made. The oddity of the thing is that he,
after all, gets in due time, mainly by the process of imitation, to
make pretty tolerable bricks." 10
Towards the middle of the 1800's an effort began to devise some-
Menone, ubi puerum Socrates a primis sensuque manifestis, nihil docens, interrogando
tantum ad ea deducit quae vel subtilissimo cuique negotium f acessant : incommensura-
bilitatem scilicet diagonii et lateris in quadrato."
7 Fortescue, De Laudibus, c. 48-9; i Gneist, English Constitution, 393;
Foss, Judges of England, II, 201, IV, 249; Report op House of Commons Com-
mittee on Legal Education, 1846, 6; 1 Blackstone, Commentaries, 23.
8 12 Law Review, 114.
9 "I myself read no treatises. . . . I learned law by reading the reports and attend-
ing the courts," said Chief Baron Pollock to his grandson, now Sir Frederick Pollock,
Bart. (First Book of Jurisprudence, 3 ed., 313.)
10 25 Macmillan's Mag., 127, 209.
Nova Methodus Discendae Docendaeque Jurisprudentiae 815
thing more helpful and better suited to the professional dignity
of law. The matter was taken up by the Society for the Amend-
ment of the Law and was vigorously discussed. A committee of
inquiry of the House of Commons was appointed in 1846 to report
on the state of legal education; and a commission, including Vice-
Chancellor Wood and Sir John Coleridge, was appointed in 1855
to report on the Inns of Court. Both these bodies recommended
the establishment of a University of Law, under the control of the
Inns. But the outcome seems to have been not much more than a
zealous increase of the number of lectures by the Readers of the
Inns. The old system was revivified, not materially altered. Ap-
parently it was a case of "muddling through."
In 1871 (when Mr. Langdell's incumbency in the Harvard Law
School had but just begun) Mr. Bryce and Mr. Dicey came to the
United States and visited several law schools. The Columbia Law
School received from them the most favorable comment; u at the
head of it was then Theodore Dwight, a man of great personal
magnetism and didactic skill. The idea of a University of Law
was now again mooted by the Society for Legal Education, having
at its head Lord Selborne, who carried through in 1873 th e measure
reforming the judiciary system. The principal material result
seems to have been that the Readers of the Inns were replaced by
Professors and Tutors, the number being increased. Among these
were included, in 1873, sucn scholars as Amos, Broom, and Hunter,
and, in 1886, Pollock, Bryce, and Harrison. But within the next
fifteen or twenty years an extension of the number and scope of
the subjects required for the law degree at the larger universities
showed the wide workings of this spirit of improvement; and in
1883 appeared Mr. Dicey's plea for the teaching of English law at
Early in 1885 Mr. Finch visited the Harvard Law School; I
remember that we students felt proud of the reason for his pres-
ence. On his return to Cambridge, England, his lectures then in-
troduced what the Law Quarterly Review was willing to term
"the method of Professor Langdell." In the fall of 1885 came Sir
Frederick Pollock, and visited the Harvard Law School; and the
impression produced on his mind by its method of instruction was
an important influence (as he tells us in the preface to his "Treatise
11 See 25 Macmillan's Mac, 127, 209.
816 HARVARD LAW REVIEW
on Torts,") not only in his teaching but in his writing also. Mr.
Finch later published a " Selection of Cases on the English Law of
Contract, Part I," and an inaugural address on "Legal Educa-
tion, its Aim and Method."
The important features of this fourth stage of legal education in
England were: (a) the radical change in the source of instruction,
— for it now began to be given at universities by scholars holding
university professorships, instead of in London by barristers under
the auspices of the Inns of Court; (b) the adoption of the Langdell
method by Mr. Finch. 12
Meantime, a century before, America had already made its first
contribution to Anglo-American method, — the law school. At
Litchfield in 1782 (the old schoolhouse is still standing; you can
buy a picture-card of its dilapidated modesty) the example was set
by Reeve, and then by Gould. Harvard University now cele-
brates the hundredth anniversary of its own school, the oldest sur-
viving one. There were other schools, which passed away, though
notable in their day and region, — for example, those of Nicholas,
Pirtle, and Robertson at Lexington, Kentucky (afterwards Tran-
sylvania University). But the didactic type was the same — set
lecture and memorized treatise, or both, — though Smith's "Lead-
ing Cases" had long hinted at other possibilities.
Then came Christopher Columbus Langdell, with the insight of
genius into the spirit and needs of Anglo-American legal sources.
The Langdell Method as a World Method
It has always seemed to me that LangdelFs method was an un-
conscious product of the scientific spirit of realism — that realism
which was then just beginning to obtain the dominance now uni-
versal, — the scientific realism of Darwin, Comte, and Spencer,
which has gradually spread into Art, Religion, and Industry. Of
this aspect of his method, he himself may or may not have been
u The foregoing page or so has been lifted without quotation marks (but with slight
revision) from an editorial note in the first volume (1887) of this Review, 297. But
to deflect the sleuth of plagiarists, let me confess that the anonymous author was my-
self. At the time I felt rather pleased with this editorial debut.
Nova Methodus Discendae Docendaeque Jurisprudentiae 817
conscious; but it was conceived in the spirit of looking at the ulti-
mate facts as they are and of treating them inductively.
But I think that he must indeed have been conscious of the rela-
tion of his ideas to the modern movement of Science; for his formal
exposition of principles, delivered at the Two Hundred and Fiftieth
Anniversary Celebration, in 1886, begins with the mighty sentence:
"Law is a Science!"
I was present, as a student, on that occasion; and often, in the
ten years thereafter, when arrayed in the ranks of militant disciples
of his method, I recalled that deliverance. To me it has the sono-
rous ring of a new gospel, the utterance of a prophet and a seer.
In its rhetoric, as in its philosophic significance, it is, for us lawyers,
what John's utterance ("not to speak it profanely") was to the
theologians: "God is a Spirit, and they that worship him must
worship him in spirit and in truth."
And it was a daring thing to say, in those days. His hearers be-
lieved in him; but I doubt if many of them believed in his utter-
ance, or even grasped its full truth. The profession (let us acknowl-
edge it) does not yet believe. For some years past, I have ventured
to try the phrase "legal science" in this or that professional con-
nection; and ever I find but a philistine reception for it. Outside
of our profession, there is even less readiness to concede such a
status to Law. Recently, before a Science Club, composed chiefly
of professors in the natural sciences, I delivered, by request, an
address on the topic, "Law as a Science, and its Methods Compared
with those of Other Sciences." It was evident (at the outset, cer-
tainly) that any exponent of such a theme must yet expect to be on
the defensive in claiming a genuine place for Law as a science.
Langdell's great truth, so boldly affirmed now thirty years ago,
has another generation to run before it becomes a truism in Anglo-
His method, however, — the method founded on that truth, —
has already been accorded universal acceptance. And if, beyond
its native soil of America, it has received as yet only theoretical
approval, in England and other countries of Anglo-American law,
that is only because of temperamental obstacles to the free Socratic
style of discussion which incidentally has gone with it, 13 and be-
13 Mr. Dicey pointed this out thirty years ago (2 L. Quart. Rev. 88); and contem-
porary witnesses report little change today.
818 HARVARD LAW REVIEW
cause of the naturally slow spread of a truth beyond national bor-
ders in an applied science.
But its career is not to be bounded by the realms of Anglo-Ameri-
can law. In its emphasis on the inductive process in legal pedagogy,
it has yet a solid service to perform in Continental law. Some of us
are fond enough to believe that it will still play its part in all of
Western Europe, — the countries now fettered in method by their
codes and by other traditions. The exclusively dogmatic method
has inherent shortcomings. There is both room and need, in their
system of education, for inductive training. The Langdell system
would supply that need. Therefore I believe that it will be adopted
and adapted, in due course of destiny.
Signs have appeared there, for some time, of a readiness to ap-
preciate this. In the history of Law, some have long ago begun to
use it, in such works as Girard's "Textes du droit romain" and
Lorsch and Schroder's "Urkunden zur Geschichte des deutschen
Privatrechts." They use it in practice manuals. And they are ripe
to use it in the substantive law. What they now need is merely
some demonstration of its possibilities in a class-room. Whether
that will come about through the missionary work of some Euro-
pean students who have learned the method here, or through the ex-
ample of some future American exchange professors, remains to be
seen. But one may have faith that the need will be some day duly
supplied, and that the Langdell method will complete the circuit of
that world-influence which it merits.
This would be no more than the repetition of history. For all
the great changes of method have spread only slowly from the coun-
try of origin to other countries. The "mos Italicus" took its time
in reaching France; the "mos Gallicus" found acceptance only later
in Germany and Holland; and Savigny's historical method had to
wait before it commanded universal adherence in other countries.
Has the Time Arrived for a Newer Method?
In the country of its origin, time enough has not elapsed for the
need of a new system to develop. The other great methods ran their
race for two centuries or more. But has not time enough elapsed
at least for the development of new applications of it?
Nova Metkodus Discendae Docendaeque Jurisprudentiae 819
We must remember two things, in this matter of time.
(1) One is that the Langdell method was belated. It came nearly
a hundred years — perhaps more — behind its time. English law
had long been based chiefly on judicial judgments. For nearly
three centuries the reports of cases had been fairly ample. But
since the very early 1800's (when Campbell began his Nisi Prius
reporting) they had been copious. The method might have been
aptly used at any time since (say) 1820, at least. Of course, there
was reason enough for the delay. But, so far as concerns its aptness,
a method which assumed that the main and ample sources of law
for scientific study were printed reports of judgments would have
been fully practicable at that date. The facts of law, in short,
which the method fitted, were already facts a century ago.
(2) The second thing is that during that century legal conditions
in America have ceased to be static. Of course, they are never
absolutely static. But the movements of law are apt to be like
those of a large river. It may flow on a broad level bed for many
miles; the conditions of its movement are the same, in that stretch.
But then the level of the country subsides abruptly; a defile is
reached; and the smooth stream breaks into a swift torrent of
tumultuous rocky rapids; until finally the volume of water demand-
ing exit arrives at rest once more on the lower level in open country.
Theoretically a river may descend peacefully (like the Amazon)
through its entire length, from mountain to ocean. Practically,
most rivers have these occasional sudden stretches of rapid change
to the next level. So with Law. But, not to press the analogy too
far, the period from 1800 to 1900, in American law, has been on the
whole a period of gradual placid progress, through judicial logic and
occasional legislative amendment. The present years, however,
see us entering on a period of more or less radical change.
Moreover, social change in these days being more conscious than
ever before, legal change is likely to be more rapid. The speed of
evolution of humanity has increased enormously in ratio with the
lapse of time. Paleontologists tell us, for example, that during the
Third Interglacial and the Fourth Glacial periods of the world
(represented by the Piltdown and the Neanderthal races of men)
the time that elapsed was some 125,000 years; but that the entire
human progress in the arts of life, made in that immense period,
was represented only by improved methods of chipping the surface
820 HARVARD LAW REVIEW
of flints for the making of tools. The enormous increases, in the
last twenty-five years, of modes of communication have resulted
in almost corresponding growth in capacity for exchange, and there-
fore change, of social ideas. Hence, a change of "conditions which
might have required a century of time in the 1400's, or even the
1600's, would not now be an anomaly in a quarter of a century.
For these reasons it would not be anomalous to find that a method
of legal education, invented half a century ago, and even then half
a century belated, might now already be mature for readaptation to
What is there, then, in the method which could be supposed not
to fit present conditions? It seems to me that one can put a finger
on the precise place. That place is what may be called the minor
premise of the Langdell syllogism. "First, Law is a Science," was
the major syllogism; and no one can be hardy enough to question
this. But "Secondly," he announced, "all the available materials
of that science are contained in printed books," 14 i. e. in reports of
cases. He did not say "reports of cases," but the spirit and the
practice of his method were strictly thus limited. 15
It is here that the doubt arises. Can we today concede that the
reported judicial judgments are the sole sources for the science of
Law? And if they are not, if there are other important sources,
must not a sound method of legal education make regular use of
them also? And, if so, what shall be those uses?
The Six-Process Method
At this point let me preferably shift the order of thought, and
make my proposals after setting forth my own notions of the fun-
damental processes of Law.
My thesis will be this: Law, as a subject of thought and activity,
14 Harvard Law School Association, Report of the Organization and First
General Meeting (Boston, 1887), 40.
16 On this occasion the speeches all showed that such was the understood implica-
tion. Mr. Carter, e. g., referred to "the great and principal cases in which are the real
sources of the law" (p. 26). And such was the usage of the School at that time. It
was, for instance, not thought necessary in 1887 for the Library to possess a complete
set of the statutes of the several states. The main object was to get behind the treatises
to the cases.
Nova Melhodus Discendae Docendaeque Jurisprudentiae 821
has several distinct categories or modes of being, and cannot be
thought about except in one or another of these processes; hence,
any curriculum of legal education must be based on these distinc-
tions, by aiming to develop each process adequately. 16
In a former number of this Review 17 1 was permitted to set forth
a classification of Law into four branches, only two of which are
here material. Law was classified according to the different activi-
ties of thought which deal with the fact of Law. Law, in the first
place, may be conceived of as a thing to be ascertained; i. e. as a
mere fact of human conduct; and Law, in the second place, may be
conceived of as a thing to be questioned and debated, i. e. as a rule
which by some standard ought to be different from what it is. The
uncouth names given, for short, to these two general branches of
legal science were Nomoscopy and Nomosophy; but the names are
Now \he first general branch has three subdivisions: (a) We may
concern ourselves with ascertaining the actual rule of law of a given
moment in a given country, by studying the sources in which that
law is expressed; call this, Nomostatics. (b) We may concern our-
selves with ascertaining the former condition, history, and develop-
ment of a rule of law; call this, Nomogenetics. (c) We may concern
ourselves with ascertaining the relation between Law and other facts
and their sciences; call this, Nomophysics.
The second general branch above has two subdivisions: (1) We
may take a standard of logic, analyze the rules of law, and examine
their consistency as a system or part of a system; call this, Nomo-
critics. (2) We may take a standard of ethics, economics, or politics,
and examine the rules of law with reference to their conformity to
that standard; call this, Nomothetics or Nomopolitics.
But there is also a third general branch (not taken up in the
above-cited article). We may take the Law of a given community,
or one or more rules of it, and compare it with the law of another
community, with reference to one or all of the above features, i. e.
Comparative Law, or Supra-national Law.
What is the significance of these distinctions for legal education?
16 My conclusions will coincide in some respects with those of Professor Redlich, in
his recent report to the Carnegie Foundation, but are reached by a different path.
17 28 Harv. L. Rev. i (November, 1914); also in the writer's Cases on Torts, vol.
II, Appendix A.
822 HARVARD LAW REVIEW
The significance of them is this: All of the above ways of thinking
about Law are inherent and unavoidable, and are used in a lawyer's
practical activity. Some are used always more than others, and
some are used at certain periods of a nation's history more than
others. But all are used, and all are necessary and inevitable.
Hence, legal education should endeavor to train the student in the
use of all of them, and not merely in one or two of them.
For educational purposes, then, how do they group themselves
practically? That is, how far are they so distinct, in the mental
processes involved, that practically they require separate attention
in educational method?
Here, of course, experience as a student and a teacher comes into
play. Speaking from such experience, I am convinced that there
are substantially six distinct mental processes, which need separate
attention and cultivation.
Without adhering formally, therefore, to the above artificial
nomenclature, let me .briefly set forth these six kinds of mental
process which need to be cultivated in the embryo lawyer.
i. Analytic process. The first is the process of analyzing the judi-
cial decisions, to determine the Law as it is, by tracing the logical
implications of general principles as revealed in specific cases.
This process is what the case-study method provides for the
student. And it is the only process (of the six) that it provides.
Whether we are searching for the rule of mutual consent in contracts,
or for the rule of liability of individual partners to firm creditors, or
the rule of privilege for interested persons in defamation, or for any
other actual rule of law, the process is always one of dissection or
analysis, in logical detail.
This is indeed the process most used by practitioners in their
ascertainment of the existing Law (Nomostatics) . And in the past
and present phase of our legal sources it is the most usually needed
process. Therefore it calls for thorough mastery. And the great
service of Langdell's method was and is that it supplies that mas-
tery. But that process is not the only process of thought used and
needed by the lawyer or the legal scholar. And in the coming state
of our legal sources it will occupy, as a process, a place of less rela-
tive importance than hitherto (though still a larger place presum-
ably than any one of the others). This was the shortcoming of the
case-study method, — a shortcoming which in changed conditions
may be termed serious.
Nova Methodus Discendae Docendaeque Jurisprudence 823
2. Historic process. The second process of thought about Law is
the thought of it as changing, moving, developing, from a past
through a present into a future, — the historic process. This mode
of thought becomes specially important to a lawyer in an epoch when
his national law is in a period of rapid change, — that is, change
maturing in his own lifetime. To any student it is an important
intellectual stage when he first realizes that all law is in a state of
constant motion, like a kaleidoscope. I do not remember just when
this realization came to me; I know it was not while in the Law
School; but as I look back, I note a great difference in all my no-
tions about law since the time of that realization. I am convinced
that the acquisition of it should be made at the stage of one's formal
Many have fondly believed that this can be done and is done by
the case-study system. I doubt it. Something indeed can be done;
but not enough. There are several reasons for this; to elaborate
them would require too much space. But a most important one is
that historic change of rule is the result always of causes, — causes
more or less discernible but external; and the judicial opinions do
not contain sufficient data of those causes. Who, for instance, could
attempt to understand the causes that influenced the rule against
general warrants, by merely reading Camden's eloquent opinions?
The historic sense is a necessary sense for the lawyer; and the
case-study method does not supply data for its genuine cultivation.
3. Legislative process. A third process of thought about Law is the
thought of it as something to be created, made by ourselves, and
made to be perhaps different from what it now is, — in short, the
legislative process. And, in a period of changing law, this too be-
comes an important process for the lawyer, — the most important
in a civic sense.
Now the habitual analysis of judicial judgments does not in the
least cultivate the acquisition of this process. The two are fairly
alien to each other. One of the notable reasons for our American
lack of legislative skill is that our judiciary committees of the leg-
islature, who frame the statutes, are composed of men whose only
training (hitherto) has been in the analysis of case-judgments.
The really basic principles and problems that attend the legislative
process have scarcely been dreamed of by our most competent prac-
titioners. Any one who hesitates to accept so strong a statement
824 HARVARD LAW REVIEW
may be convinced by glancing at the current volume ("The Science
of Legal Method") in the Modern Philosophy Series; or at the
recent volume of Professor Ernst Freund of the University of
Chicago, on "Standards of American Legislation."
The legislative process of thought about Law is necessary for the
lawyer; and the case-study method does not cultivate it at all.
4. Synthetic process. A fourth process of thought about Law is
the process of building up individual rules and principles into a con-
sistent system — of being able to trace every rule backwards and
upwards to its more and more general expressions and of har-
monizing these, — in short, the synthetic process.
This process is needed and has always been used to some extent
by lawyers. It characterizes the greatest of them in their argu-
ments, and it ordinarily comes only at their maturest period. It
represents their highest capacity. In a period of changing law it
underlies the skill that- is necessary in order to fit the new law well
into the old, — like the skill of an architect restoring an old but
solid building, who knows which beams, pillars, and girders are in-
dispensable, and which ones can be removed without scruple.
The case-study method is capable, perhaps, of furnishing some
of the material for this process. But it has ordinarily not been so
used; in its ordinary use its service is purely or mainly analytic and
not synthetic. The treatises on Analytic (thus miscalled) Juris-
prudence purport to render the service; they represent synthesis.
But their vogue has not been favored under the case-study system.
The synthetic process of thought is often dismissed (as in a recent
official utterance) with the epithet of "speculative jurisprudence."
But its time must come, if our law is ever to be soundly recon-
structed; and legal education must provide for this in its methods.
5. Comparative process. The fifth process of thought about Law
is the process of looking outside our own actual law ("the" law),
of conceiving a non-Ego in law, of realizing that other communities
live and move under other legal systems, and that these must be
reckoned with in the life of our own law among nations' laws, —
in short, the comparative process. This consciousness of "a some-
thing not ourselves that makes for Law" (to paraphrase Matthew
Arnold's phrase) — a sort of legal altruism, or anti-local spirit, —
is an important one to acquire, especially in a period like the pres-
ent. International relations are becoming more and more active
Nova Methodus Discendae Docendaeque Jurisprudentiae 825
in daily commerce; and national insularization of law can no longer
be reckoned upon.
Fortunately, our own federal form of national life has already
tended strongly to cultivate in us this sense of law. The free com-
parison of common-law precedents from all the states has inevi-
tably done this, even under the case-study method. Yet there
remains the need of extending it to non-Anglo-American legal
systems, and to the systems of law in other epochs.
The case-study materials, as hitherto provided, do not supply
this need. Much remains to be done for cultivating the sense of
national law as merely a member in the family of laws, — a family
in which we must be prepared to seek harmonious adjustment and
mutual profitable imitation.
6. Operative process. The sixth process of thought about Law
conceives of law as being a nominal rule (as declared by courts and
legislatures) which may in fact, however, not be enforced and prac-
ticed; it seeks constantly to keep aware of the gap, if any, between
the nominal rule and the actual custom; it may be called the opera-
tive process. This is Professor Ehrlich's "living law." 18
This is, in one sense, the "practical" side of law ("pragmatic"
would more nearly describe it). It is often supposed to be taken
care of by the so-called Practice courses; but that belief is an error.
Those courses deal mainly with judicial procedure. The present
process involves the substantive law. It concerns "practice," in
that the attorney's intelligent advice to his client requires an ac-
quaintance with actual commercial customs, and that this knowl-
edge comes usually through practice only. In reality, this process
concerns a specific and distinct conception of the Law, which is
just as real and interesting for the scientific scholar as for the prac-
titioner; and thus it ranks as a separate object of legal study, dis-
tinct from procedural skill and tact.
The case-study method does something for this object — per-
haps a good deal — certainly very much more than in the code
countries with which Professor Ehrlich is familiar and in which he
saw the special need of study in this part of the field. For the case-
reports contain copious data of actual commercial customs and of
documents set forth verbatim. Again and again they exhibit edify-
18 Set forth in his paper read at the 1915 meeting of the Association of American
826 HARVARD LAW REVIEW
ingly this contrast of light and shadow (so to speak), of law and
custom. But what they do thus exhibit is only casual and scanty,
in comparison with what could be and ought to be done. What
ought to be done is, in every course, to provide a systematic appa-
ratus of documents taken from today's customs of trade and in-
dustry, and to make occasional excursions of inquiry into statistics
and other classes of facts. Thus only can this process of thought
be adequately cultivated. 19
Such are the six processes, or senses of Law, which legal education
must be adapted to cultivate. How far does our present curriculum
provide for them?
A Reconstructed Curriculum
Taking the curriculum of the school with which I am most famil-
iar, let us see how its courses of today distribute themselves with
reference to their service in developing mainly one or another of
the above six processes. They may be classified, roughly, as follows:
i. Analytic process: Contracts; Torts; Real Property; Common
Law Procedure; Damages; Personal Property; Evidence; Quasi-
Contracts; Agency; Commercial Paper; Crimes; Equity; Prop-
erty II; Persons; Judgments, etc.; Public Officers; Carriers;
Trusts; Insurance; Public Utilities; Equity Pleading; Bankruptcy;
Suretyship; Constitutional Law; Property III; Criminal Pro-
cedure; Irrigation; Mining; Code Pleading; Mortgages; Munici-
pal Corporations; Partnership; Federal Jurisdiction; — 33 courses,
representing 84 semester hours.
2. Historic process: Legal Biography and History; Roman Law;
Evolution of Law; — 3 courses, representing 6 semester hours.
3. Legislative process: Contemporary Legislation; Applied Crim-
inology; Statute Law; — 3 courses, representing 4 semester hours.
4. Synthetic process: General Jurisprudence; Philosophy of Law;
— 2 courses, representing 5 semester hours.
5. Comparative process: International Law; Roman Law; Con-
flict of Laws; Evolution of Law; — 4 courses, representing 13
6. Operative process: Conveyancing is virtually the only course
directly aiming at this object. (But in any adequate method the
19 At some more opportune time I should like to expound a method by which the
practical obstacles to securing such an apparatus can be overcome.
Nova Methodus Discendae Docendaeque Jurisprudentiae 827
process would form a fractional part in almost every course under
1 above; so that it cannot easily be compared in semester hours
with the others.)
This survey shows that out of a total of some 112 semester units
offered, 20 nearly five-sixths serve mainly or wholly the first above-
named process, the analytic; while all the other five processes to-
gether are served (except incidentally, as noted under 2, 5 and 6)
by only a little more than one-sixth of the units. Moreover, in the
actual result this disproportion is increased; for since only 70 semes-
ter units are required to be achieved, and since in these 70 a mini-
mum of 5 units only is required to be selected outside of the first
group, the mass of students (following the orthodox lines) may and
do content themselves with little more than that minimum (5 to 10
units) in making the selection. So that, in fact, more than six-
sevenths of the education is spent in exercising the analytic process.
The question is, then, Is that enough? I am convinced that it is
not. Even after all concessions made (i. e., that the analytic process
is the most common one for the practitioner, that it requires for its
mastery long-continued and widely varied drill, etc., etc.), its share
remains disproportionately large. That its mastery really needs,
week after week for three years, in twenty-five or thirty different
subjects, the repetition of that identical process of case-analysis, I
have for some time ceased to believe. The same benefit could be
obtained with less quantity of identical mental effort.
Moreover, the prestige given thus to the analytic process tends
to repress in the student body an appreciation of the equal need of
the other processes. The need for them is equal (though the quan-
tity of exercise required may not be as much). But the orthodoxy
of the first has thus far kept the others in the rank of heterodoxies.
They should be given an equality of emphasis.
My proposal is, therefore, that the curriculum be re-grouped
with reference to the above six distinct processes; that a better
proportion be sought in distributing the pedagogic attention to
them; that more suitable materials be devised for cultivating the
five now heterodox processes; and that the required subjects be so
enlarged that every student is certain to have had a fair elemen-
tary training in all of the processes.
20 The purely "Practice" courses have been omitted in the above grouping.
828 HARVARD LAW REVIEW
And now, in view of the skepticism which will doubtless greet
this novel division into "processes," I venture, in its defense, to
invoke analogy. No doubt (as the revered Professor Hill used to
inculcate unsparingly) analogy is not argument. Nevertheless, it
is often helpful and plausible. And I see a plausible analogy in
There are four processes or stages in physical training, (i) First
come the individual muscles. We have at our disposal a score of
different "chest-weight" exercises; each of them will reach a spe-
cific set of muscles. Suppose that we have carefully developed each
one to a degree. (2) But we are yet unskilled in their coordination.
Here the parallel bars, the horizontal bars, the rings, and other
apparatus train us to use several sets of muscles at once, each play-
ing a part and adjusting itself at the right moment to the others, to
attain a total result. But thus far we are using muscles only. (3)
The other bodily functions (lungs, stomach, etc.) remain to be
drilled and coordinated with the muscles; endurance and economy
of effort must be cultivated. Sparring, wrestling, fencing, track
athletics, do this. They represent a stage beyond the former two.
(4) But as yet the task is individual only. It must now become
social. The whole skill of each Ego must merely contribute as a
subordinate part of a larger whole. Team athletics supply this, —
baseball, football, and the rest.
Here, then, are four distinct processes in athletic activity. No
complete athlete can lack any of the four. Sound training must
include specific and systematic attention to all four. A man who
went no further than specializing in chest-weights would be athleti-
cally imperfect. And the most skilled team-player must possess a
general foundation in individual muscle-development.
What I now point out, therefore, in legal education, is that, if
these distinct processes be recognized to exist, each must be con-
sciously cultivated by methods specifically adapted to that purpose.
To sum up: I invite assent to the following theses:
That Law is dealt with, in nature and in thought, by six distinct
mental activities or processes, — the analytic, the historic, the
legislative, the synthetic, the comparative, the operative;
Nova Methodus Discendae Docendaeque Jurisprudentiae 829
That these six processes have greater or less importance at differ-
ent epochs of a community's legal life; and that in our present
epoch the second, third, fourth, and fifth have a relative importance
which they have not had for a century past;
That the case-study method, as hitherto practiced, develops
mainly the first only; and yet that method represents five-sixths or
more of the student's activity under the ordinary curriculum of
today; and that this is disproportionate;
That therefore greater relative place should be given to the others
(relegating the analytic process to, say, one half of the course) ; and
that more suitable methods and materials should be provided for
their adequate cultivation.
John H. Wigmore.
Northwestern University Law School.